Delhi District Court
State vs Mr. Deepak Malhotra, on 5 December, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 94/2014.
Unique Case ID Number : 02401R0370792014.
State versus Mr. Deepak Malhotra,
Son of Mr.Shadi Lal Malhotra
Resident of B-3/83, Ground Floor,
Paschim Vihar, Delhi.
First Information Report Number : 493/14
Police Station Paschim Vihar
Under sections 376D/328/201 of the Indian Penal Code.
Date of filing of the charge sheet before : 05.08.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 26.08.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 05.12.2014.
Date of judgment : 05.12.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused Deepak Malhotra has been produced from judicial
custody.
Mr.Suresh Tomar, counsel for the prosecutrix.
Prosecutrix is present.
Ms.Poonam Sharma, counsel for Delhi Commission for
Women.
IO SI Sharmila is present.
Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar,
Under sections 376/328/201 of the Indian Penal Code.
State versus Deepak Malhotra . -:: Page 1 of 25 ::-
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JUDGMENT
1. Mr.Deepak Malhotra, the accused, has been charge sheeted by Police Station Paschin Vihar, Delhi for the offence under sections 376D/328/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 01.07.2014 at about 10.30 am at WZ-31, Jawala Heri Market at the first floor of godown, Delhi, he forcibly committed rape on the prosecutrix (name mentioned in the file and withheld to protect her identity) and on the above said date after the commission of rape by him on the prosecutrix, he caused the evidence of offence of rape to disappear i.e. the accused caused the bed sheet to disappear on which rape was committed by him upon prosecutrix with the intention of screening himself from legal punishment.
2. After completion of the investigation, the charge sheet against accused Mr.Deepak Malhotra was filed before the Court of the learned Metropolitan Magistrate on 05.08.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 26.08.2014.
3. After hearing arguments, charge for offence under sections 376 and 201 of the IPC was framed against the accused Mr. Deepak Malhotra vide order dated 06.09.2014 to which he pleaded not guilty and claimed trial. Here it may also be mentioned that although the prosecutrix has levelled allegations of her being administered some intoxicant in water due to Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 2 of 25 ::-
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which she lost consciousness, but charge under section 328 of the IPC was not framed as the FSL report revealed that no intoxicant was found in the gastric lavage of the prosecutrix, bottle, etc.
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1; Mr.Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. as PW2; and Mr.Mohd. Yunus, Assistant Director Legal, Sistema Shyam Teleservices Ltd. as PW3.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that earlier she was married to Mr. Dharampal from whom she had taken divorce in the year 2001. The divorce was taken in the Court. As she had some differences with her parents, she is not in touch with them since last about five years. Since 5-6 years she is living with Mr. Sanjit Kumar in a live-in relationship. On 30.06.2014, she had seen an advertisement in the newspaper. It was mentioned that there is a requirement of fresh girls in a shop i.e. Laxmi Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 3 of 25 ::-
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Opticals, Jawalaheri, Delhi. A phone number was also mentioned in the advertisement but she did not remember the same today. She had called at that phone number to inquire about the particulars of the job on which she was told by the man who had taken the call that she should come to the shop and discuss the matter. On her inquiry, he told her that the directions to reach the shop from Peeragarhi. On 30.06.2014 at about 2.30 pm she reached the shop i.e. Laxmi Opticals. Some labour was working there and they called the owner of the shop. One man who disclosed his name as Mr.Deepak Malhotra came to the shop and told her that he is the owner of the same. This Mr.Deepak Malhotra is not present in the Court today. (The witness was asked to see the accused through the screen and thereafter she is further examined). She further deposed that the man who had met her in Laxmi Opticals claiming to be Mr.Deepak Malhotra is not present in the Court today. She has seen the accused through the screen and she says that he is not the same man whom she had met in the shop. The accused who is present in the Court today is an old man while Mr.Deepak Malhotra whom she had met, was a young man who was aged about 35 years. Mr.Deepak Malhotra made inquiries from her and asked her whether she would like to do a job in his shop. He did not give her the details of the job. She told him that she was teaching in a school and as there were holidays, she could do the job but she did not have any experience. She stated that he told her to come on the next day at 10.30 a.m with her bio-data. Then she left the shop. On the next day she reached the shop at about 10.15 a.m. She gone to the first floor of the shop where she had taken water and then lost consciousness. She did not know what had happened after she became unconsciousness. She Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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stated that the accused who is present in the Court today whom she has seen through the screen has not committed any offence against her. She have never seen him prior to today. She had reached the shop of Laxmi Opticals, Jawalaheri market at about 10.15 a.m on 01.07.2014. The shop was closed. Then she telephoned Mr. Deepak Malhotra on his mobile phone and asked him that he had called her at 10.15 a.m but his shop was lying closed. He told her to come on the first floor of the shop which was the godown. She did not remember the mobile phone number of Mr. Deepak Malhotra today. She has written it on a slip of paper which she did not have now. When she regained consciousness, she found that the black coloured pajami and black coloured panty which she was wearing were partly removed as both were removed from her left leg completely and lowered from her right leg upto knee. The clothes on upper part of her body were intact. When she regained consciousness, that Mr.Deepak Malhotra was leaning over her and Ms. Priya was sitting in a chair. She noticed that Mr.Deepak Malhotra was wearing a T-shirt but did not observe whether or not he was wearing any clothes on the lower part of his body. When she had gone to the shop at about 10.15 a.m, Mr.Deepak Malhotra and a girl whose name she was told during investigation to be Ms.Priya were present in the godown. The shop was on the ground floor and the godown was on the first floor of the shop. She was served water by Ms. Priya. When she regained consciousness and saw her condition as well as the condition of Deepak Malhotra, she felt that he had established physical relations with her while she was unconscious. She wore her clothes and came down stairs while she was crying. The neighbours of the shop inquired from her as to what had happened with her Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 5 of 25 ::-
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but she did not tell them anything. She called the police at 100 number from her mobile (number deposed in her evidence but withheld to protect the identityof the prosecutrix). She had moved ten steps away from the shop which was closed. She told the police her name and that she was in Jawalaheri market and something wrong has happened with her and she also told the place of incident. The policeman inquired from her whether "chedkhani" or " bilkul galat" has happened on which she told him that "bilkul galat hua hai." The police arrived at the spot. The lady police came to her and the male police went to Mr.Deepak Malhotra. The police inquired from her whether she was accompanied by anyone when she had answered in negative, they told her to call anyone on which she had telephoned Mr. Sanjit Kumar who arrived there after about 10 minutes. He accompanied her from there. She did not know where Mr. Sanjit Kumar was when she had telephoned him and informed him about the incident. He told her that he would reach her in ten minutes and came there in about ten minutes of her phone. She was taken straightaway to Sanjay Gandhi Memorial Hospital for her medical examination. The doctor had taken all her clothes in the medical examination i.e her pajami, panty, dupatta , shirt and bra. She was given a blue coloured dress i.e shirt and pajama by the doctor which she had worn. After the medical examination, she was taken to the Police Station Paschim Vihar and she was still wearing the same blue coloured dress. Mr. Sanjit Kumar brought another set of clothes for her and after changing into the same, she threw away the blue coloured dress which she had been wearing till that time. In the Police Station, the police made inquiries from her and she was counseled by someone from Mahila Ayog. Her statement (Ex. Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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PW1/ A) was recorded by the police . Thereafter, she along with Mr. Sanjit Kumar were permitted to leave the Police Station and she was told that she was to appear before the court for her statement. She further deposed that after 2-3 days as directed by the IO / SI Sharmila, she appeared before Tis Hazari Courts where her statement under section 164 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/B) was recorded by learned Metropolitan Magistrate. Her statement under section 164 of the Cr.P.C. (Ex. PW1/B) recorded on 08.07.2014. It was not after 2-3 days but was on 08.07.2014. The police did not make any investigation from her. They did not ask her place of the incident nor take her there. She again stated that the accused who is present in the Court today whom she has seen through the screen is not the same man by the name of Mr. Deepak Malhotra who had committed the offence against her. The culprit was a different man. She further stated that the man who is present in the Court today as accused in this case is not the culprit and he has not committed any offence against her. She has already deposed that the accused is not the same Mr.Deepak Malhotra.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she is fully aware that accused Mr.Deepak Malhotra who is present in the Court today is the same man who has been arrested on her complaint dated 01.07.2014. She admitted that she Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 7 of 25 ::-
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has not made any complaint to the police or the Court since 01.07.2014 till today that a wrong man has been arrested in this case i.e. accused Mr.Deepak Malhotra who is present in the Court today is not the same man who has committed the offence. She admitted that she had appeared before this Court on 06.09.2014 and the accused was also produced before this Court on 06.09.2014 when the bail application of the accused was considered. She voluntarily stated that she did not know who was the accused in this case as he was not shown to her. She admitted that she had appeared before this Court on 11.09.2014 and 24.09.2014 and the accused was also produced before this Court on 11.09.2014 and 24.09.2014. She admitted that on 06.09.2014, 11.09.2014 and 24.09.2014, there was no screen put between herself and the accused as has been put during her evidence before this Court on 21.10.2014 and today i.e 30.10.2014. She stated that she is a graduate and have done B.A. She denied the suggestion that as she is an educated woman, she is aware about the Court proceedings. She denied suggestion that she has deliberately not identified accused Mr.Deepak Malhotra as the culprit on 21.10.2014 and 30.10.2014 despite seeing him on 06.09.2014, 11.09.2014 and 24.09.2014 and she is deposing falsely to this effect. She admitted that during the hearing of the bail application of the accused on 06.09.2014, she had submitted that as the accused had committed wrong with her, he should not be granted bail. She voluntarily stated that only inquiry was made from her and she was not shown the accused. The prosecutrix has shown seizure memo (Ex. PW1/C) of plastic bottles dated 01.07.2014. She stated that she did not read the document before signing on it. She stated that the IO had told her that it is regarding seizing the bottles and then she had signed on it.
Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 8 of 25 ::-
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She denied the suggestion that she had taken the IO to the spot of incident and had shown the same to her and that the IO had seized two plastic bottles, one without cap and the other containing some liquid like water in her presence. The site plan dated 01.07.2014 is shown to the witness. She admitted that the site plan (Ex. PW1/D). She denied the suggestion that the site plan was prepared in her presence at her instance. She voluntarily stated that she was not taken to the spot of incident. She admitted that she had signed on the site plan (Ex. PW1/D) after seeing and reading the document and ascertaining that the place of incident is correctly shown in the same. She admitted that being educated, she is fully aware that she should not sign any document without reading it. She stated that she had signed on the document (Ex. PW1/C) on the request of the IO. She denied the suggestion that she had read (Ex. PW1/C) ascertained its correctness and then signed on (Ex. PW1/C) after taking the IO to the spot from where the two bottles were seized. She had signed on the complaint (Ex. PW1/A) after reading the same. She admitted that the name and residential address of the accused Mr.Deepak Malhotra is mentioned in the complaint (Ex. PW1/A). After the police arrived at the spot, she was taken to Sanjay Gandhi Hospital by a Lady constable and the culprit Mr.Deepak Malhotra was taken by male constable. She further stated that he was not arrested in her presence. She had given her complaint (Ex. PW1/A) in Police Station Paschim Vihar after that she was medically examined and brought to the Police Station. She admitted that she had mentioned the mobile phone number of Mr. Deepak Malhotra in her complaint (Ex. PW1/A) and it was the same number on which she had made a call on 01.07.2014 in the morning when she had come to the shop at 10.15 a.m and found the shop to be closed. The mobile number Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 9 of 25 ::-
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is mentioned at point Y in complaint (Ex. PW1/A). She admitted that the IO had asked her to give her bio data and the newspaper cutting regarding the advertisement for the job at Laxmi opticals which she has given to her on 02.07.2014 by going to the Police Station. She admitted that the IO had seized her bio data (Ex.P-1) and newspaper cutting (Ex.P-2) vide seizure memo (Ex. PW1/E). She did not know whether or not the IO had recorded her statement (Mark X) on 02.07.2014. The statement dated 02.07.2014 under section 161 of the Cr.P.C. was shown to the witness. She has not made this statement (Mark X). She denied the suggestion that on 02.07.2014 when she had gone to the Police Station to give her bio data and newspaper cutting to the IO, accused was present in the Police Station and she had identified him in the Police Station to be the same man who had committed offence against her and that he was a culprit. She denied the suggestion that she had identified the accused as a culprit in the Police Station on 02.07.2014 and her statement (Mark X) in this regard was recorded by the IO. She was confronted with statement Mark X where it is so recorded. She admitted that on 08.07.2014 when her statement under section 164 Cr.P.C. (Ex.PW1/B) was recorded by learned Metropolitan Magistrate she had not told the Court that a wrong Mr.Deepak Malhotra had been arrested in this case. She voluntarily stated that she was not aware that the actual culprit has not been arrested. She denied the suggestion that accused Mr.Deepak Malhotra who is present in the Court today is the same man who had committed the offence against her on 01.07.2014. She stated that the man who had committed offence against her on 01.07.2014 and had disclosed his name as Mr.Deepak Malhotra was the same man whom she had met on 30.06.2014 when she had Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 10 of 25 ::-
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gone to Laxmi Opticals for the job interview. The mobile phone number (number deposed and withehld to protect the identity of the prosecutrix) is in the name of her mother, Ms. Rita Anand. She admitted that she had given a complaint dated 01.07.2014 (Ex.PW1/F) addressed to DCP and copy of the same was filed by her in this Court on 05.09.2014. She admitted that this complaint is regarding the threat given to her on 02.07.2014 by Mr. Varun Mahotra son of accused Deepak Malhotra and two more persons. She voluntarily stated that one of those two persons is a lawyer, who had argued the bail matter on behalf of accused. She further submitted that she was called to DCP office in Paschim Vihar, where she met a lady DCP and she told her not to take any action on her complaint (Ex.PW1/F). She further stated that till date, she has not asked the lady DCP to initiate action against the culprits. She denied the suggestion that as she was negotiating with the family of the accused for settlement, she had requested the lady DCP not to initiate action against the culprits. Mr. Varun Malhotra and two others had met her near Kali Mandir on 02.07.2014 at about 7.00am and had threatened her but they were not carrying any weapon. Mr. Varun Malhotra may be aged around 30-32 years. She came to know that accused Mr.Deepak Malhotra, who is present in the Court today is not the same man who had committed the offence against her on 01.07.2014 on the date of her evidence before this Court i.e on 21.10.2014. She has not made any complaint to any authority after 21.10.2014 to say that accused Mr.Deepak Malhotra, who is arrested in this case, is not the culprit but an innocent man. She has not settled the matter with the accused. She denied the suggestion that on 01.07.2014 at about 10.30am at WZ-31, Jawalahedi Market at the first floor Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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of godown, accused Mr.Deepak Malhotra, present today in the Court, had raped her and after the commission of rape he caused the bed sheet to disappear on which he had committed rape upon her. She denied the suggestion that she is intentionally not identifying the accused in this case and not supporting the prosecution case as she has compromised the matter with accused and his family. She denied the suggestion that she did not make any complaint after 21.10.2014 of the so called false implication of accused Mr.Deepak Malhotra in this case as she has deliberately not identified him in the Court as she has compromised the mater with him. She denied the suggestion that accused Mr.Deepak Malhotra, present in the Court is the same man who had committed the offence against her.
9. She has also been cross examined on behalf of accused Mr. Deepak Malhotra and admitted that she was carrying a mobile phone on 02.07.2014 when she was threatened by Mr. Varun Malhotra and two others. She denied the suggestion that she had made a false complaint (Ex.PW1/F )against Mr. Varun Malhotra and two other and as she was aware that it is false, she had requested the DCP not to take action on the same. She stated that the accused who is present in the Court today is not the same Mr.Deepak Malhotra, who had committed offence against her on 01.07.2014.
10. Thereafter, Court questions has been put to the witness/prosecutrix which are as follows:
Sessions Case Number : 94 of 2014. Unique Case ID Number : 02401R0370792014. FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 12 of 25 ::-
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Court Question no.1 : What are your educational
qualification ?
Ans. Graduate.
Court Question no.2 : Have you seen the notice pasted on the door of the Court that the litigants have to wait outside till their case is called ?
Ans. Yes, I have seen the same.
Court Question no.3: Is there a brass plate fixed on the door of the Court room saying "Camera Proceedings" ?
Ans. Yes, I have seen the brass plate.
Court Question no.4: Is it correct that when your matter is taken up, any person who does not have any concern with the case is not permitted to enter ?
Ans. Yes, I am aware that when my matter is taken up only the persons concerned with this case are permitted to remain inside the Court room.
Court Question no.5: Is this the procedure which is followed on every date that only the persons concerned with your case are permitted to remain inside the Court when your matter is taken up ?
Ans. Yes, it is the same procedure on every date. Only the prosecutor, defence counsel, accused and my self besides the Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
FIR No. 493/2014, Police Station Paschim Vihar, Under sections 376/328/201 of the Indian Penal Code. State versus Deepak Malhotra . -:: Page 13 of 25 ::-
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Judge and the lady Court staff i.e. Steno are inside the Court room when my matter is taken up.
Court Question no.6: Is it correct that you had appeared in the Court in this case on 05.09.2014, 06.09.2014 (pre lunch and post lunch sessions), 11.09.2014 and 21.10.2014 along with your lawyer Mr. Dharamvir Singh ?
Ans. Yes, it is correct.
Court Question no.7: Is it correct that on 24.09.2014, 27.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, 29.11.2014 and today i.e. 05.12.2014 you have appeared in this Court ?
Ans. Yes, it is correct.
Court Question no.8: Is it correct that on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 07.10.2014, 21.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, 29.11.2014 and today i.e. 05.12.2014, accused Deepak Malhotra had been produced from JC when this matter was taken up ?
Ans. Yes, it is correct.
Court Question no.9: Is it correct that when your evidence was recorded in the Court on 21.10.2014, 30.10.2014 and today i.e. 05.12.2014, a screen has been placed between you and accused Deepak Malhotra, present in the Court today ?
Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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Ans. Yes, it is correct that on 21.10.2014, 30.10.2014 and today i.e. 05.12.2014, a screen has been placed between me and accused Deepak Malhotra, present in the Court today.
Court Question no.10: Is it correct that on 05.09.2014,
06.09.2014, 11.09.2014, 24.09.2014, 05.11.2014 and 29.11.2014 a screen was not placed between you and accused Deepak Malhotra present in the Court today ?
Ans. Yes, it is correct that 05.09.2014, 06.09.2014 , 11.09.2014 , 24.09.2014, 05.11.2014 and 29.11.2014 a screen was not placed between me and accused Deepak Malhotra, present in the Court today.
Court Question no.11: Does this mean that accused Deepak Malhotra was visible to you on 05.09.2014, 06.09.2014 , 11.09.2014 , 24.09.2014, 05.11.2014 and 29.11.2014 ? Ans. Yes, I have seen him without the screen on 05.09.2014, 06.09.2014 , 11.09.2014 , 24.09.2014, 05.11.2014 and 29.11.2014.
Court Question no.12: Is it correct that on 05.09.2014 you had appeared and had filed a copy of your complaint addressed to the DCP. Is it also correct that you had also moved an application on 04.09.2014 furnishing your fresh address ? Ans. Yes, it is correct.
Court Question no.13: Is it correct that the Additional Public Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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Prosecutor had taken instructions from you and the IO before arguing on the bail application of accused on 05.09.2014 and 06.09.2014 and you and your lawyer had also opposed the bail application of the accused ?
Ans. Yes, it is correct.
Court Question no.14: Is it correct that when the bail application of the accused was heard n 05.09.2014 and 06.09.2014, accused Deepak Malhotra, who is resent in the Court today, had been produced from Judicial custody ? Ans. Yes, it is correct that accused Deepak Malhotra, who is resent in the Court today, had been produced from Judicial custody.
Court Question no.15: Does this mean that you had seen the accused on 05.09.2014 and 06.09.2014?
Ans. No, I had not seen him on 05.09.2014 and 06.09.2014. I had seen him during my evidence when he was shown to me. I have seen him on some dates when my case was taken up.
Court Question no.16 : Is it correct that this case has been taken up in Camera , which means that a person not concerned with this case is not permitted to enter the Court room when the matter is being heard ?
Ans. Yes, this case has been taken up separately and without any outsider or unconcerned person being in the Court room. Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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Court Question no.17: Is it correct that you have seen accused Deepak Malhotra, present in the Court today during the hearing of your case on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 21.10.2014, 27.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, 29.11.2014 and 05.12.2014?
Ans. Yes, I have seen accused Deepak Malhotra, present in the Court today during the hearing of your case on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 21.10.2014, 27.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, 29.11.2014 and 05.12.2014.
Court Question no.18: Did you go to PS Paschim Vihar on 02.07.2014 ?
Ans. Yes, I had gone to PS Paschim Vihar on 02.07.2014 and had talked to the IO and the Counseller and had also given my Bio-data and newspaper cutting to the IO. IO had not shown me the accused on 02.07.2014 or any other date.
11. PW2, Mr. Rajeev Ranjan, has proved the relevant record of CDR (Ex.PW2/A) of mobile phone no. 9212768090 (mobile phone of accused Mr.Deepak Malhotra) for the period of 30.06.2014 to 01.07.2014 along with requisite certificate under section 65 B Evidence Act (Ex.PW2/B). He has also proved the customer application form (Ex.PW2/C) which was issued in the name of accused Mr.Deepak Malhotra. He has also proved the Election Card, PAN Card and location chart of the cell ID (Ex.PW2/D, Ex.PW2/E and Ex.PW2/F respectively).
Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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12. PW3, Mr. Mohd Yunus, has proved the relevant record of CDR (Ex.PW3/A) of mobile phone (number deposed and withheld to protect the identity of the prosecutrix) which is in the name of Ms.Reeta Anand, mother of the prosecutrix for the period of 30.06.2014 to 01.07.2014 along with requisite certificate under section 65 B Evidence Act (Ex.PW3/B). He has also proved the customer application form (Ex.PW3/C) of mobile phone number, which was issued in the name of Ms. Reeta Anand wife of Mr. Prem Anand. He has also proved the copy of election card (Ex.PW3/D).
13. It can be seen from the evidence of the prosecutrix that she is giving different versions about the identity of accused Mr.Deepak Malhotra and the offence of rape by him.
14. The prosecutrix, has not deposed an iota of evidence of her being raped at all by accused Mr.Deepak Malhotra. She has not even identified accused in her evidence nor has deposed anything incriminating against the accused Mr.Deepak Malhotra.
15. In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to both the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
16. Statement under section 313 of the Cr.P.C. the accused Mr.Deepak Malhotra is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
17. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
18. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable and her evidence is not sufficient to convict the accused. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
19. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487. Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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20. Consequently, no inference can be drawn that It was accused Mr.Deepak Malhotra who on 01.07.2014 at about 10.30 am at WZ-31, Jawala Heri Market at the first floor of godown, Delhi, had forcibly committed rape on the prosecutrix and after the commission of rape by him on the prosecutrix, accused caused the evidence of offence of rape to disappear i.e. accused caused the bed sheet to disappear on which rape was committed by him upon prosecutrix with the intention of screening himself from legal punishment. No case is made out against the accused Mr.Deepak Malhotra as there is no incriminating evidence against him. In fact the prosecutrix has deposed that the culprit was a different man and the man who is present in the Court is not the culprit and he has not committed any offence against her. Prosecutrix not identified the accused Mr. Deepak Malhotra to be the culprit.
21. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused is not the same person and the culprit was a different man. Accused is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22. Consequently, no inference can be drawn that accused Mr.Deep- ak Malhotra is guilty of the charged offence under sections 376/201 IPC. There is no material on record to show that Mr.Deepak Malhotra on Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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01.07.2014 at about 10.30 am at WZ-31, Jawala Heri Market at the first floor of godown, Delhi, accused forcibly committed rape on the prosecutrix and on the above said date after the commission of rape by him on the pros-
ecutrix, accused caused the evidence of offence of rape to disappear i.e. ac- cused caused the bed sheet to disappear on which rape was committed by him upon prosecutrix with the intention of screening himself from legal pun- ishment.
23. Here it may also be mentioned that although the prosecutrix has levelled allegations of her being administered some intoxicant in water due to which she lost consciousness, but the FSL report revealed that no intoxicant was found in the gastric lavage of the prosecutrix, bottle, etc. It is also clear from the records produced by PWs 2 and 3 that there were conversations be- tween the mobile phone of the accused and the mobile phone of the mother of the prosecutrix which was used by the prosecutrix.
24. It is clear from the evidence of the prosecutrix that she has not identified the accused Mr.Deepak Malhotra as the culprit by withholding the truth from the Court and deposing that she had never seen the accused prior to the date of her evidence i.e. 21.11.2014 as it is clear from the Court ques- tions as well as the cross examination by the Additional Public Prosecutor that 24.09.2014, 27.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, 29.11.2014 and today i.e. 05.12.2014, the prosecutrix had ap- peared in this Court and on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 07.10.2014, 21.10.2014, 30.10.2014, 05.11.2014, 18.11.2014, 24.11.2014, Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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29.11.2014 and today i.e. 05.12.2014, accused Deepak Malhotra had been produced from judicial custody when this matter was taken up. When her ev- idence was recorded in the Court on 21.10.2014, 30.10.2014 and today i.e. 05.12.2014, a screen has been placed between her and accused Mr.Deepak Malhotra and on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 05.11.2014 and 29.11.2014 a screen was not placed between her and accused Mr.Deepak MalhotraShe also admitted that she seen accused Mr.Deepak Malhotra without the screen on 05.09.2014, 06.09.2014, 11.09.2014, 24.09.2014, 05.11.2014 and 29.11.2014. She also knew that the proceedings in her case were conducted in camera and any outsider or unconcerned per-
son were not permitted to in the Court when the matter was heard. She also admitted that on 05.09.2014 and 06.09.2014, she and her lawyer had opposed the bail application of the accused. She has also admitted that she has not made any complaint to any authority of false implication of accused Mr.Deepak Malhotra. She had even given a complaint of threat by Mr.Varun Malhotra, son of accused and two others which she preferred not to pursue and requested the DCP not to take any action on the same.
25. These facts make it apparently clear that the prosecutrix despite knowing that accused is not the same man who committed the offence against her, still falsely implicated him in a criminal case of very serious na- ture and pursued it by opposing his bail application and making complaint against his son. She has also levellled false allegations of her being intoxicat- ed prior to the offence of rape and this fact is borne out from the FSL report. She has given false information to the police, a public authority and made it use its lawful authority to to the injury of the accused. She has opposed the Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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bail application of the accused on 05.09.2014 and 06.09.2014 despite know- ing that the accused is not the same man who allegedly committed offence against her. She has also deposed falsely regarding not seeing the accused prior to the date of her evidence i.e. 21.11.2014 when she has admitted in the Court questions and the cross examination of the Additional Public Prosecu- tor that she has seen him earlier on several dates. She has admitted that she is fully aware that accused Mr.Deepak Malhotra who is present in the Court to- day is the same man who has been arrested on her complaint dated 01.07.2014. She admitted that she has not made any complaint to the police or the Court since 01.07.2014 till today that a wrong man has been arrested in this case i.e. accused Mr.Deepak Malhotra who is present in the Court to-
day is not the same man who has committed the offence.
26. From the above discussion, it is clear that the claim of the prose- cution is neither reliable nor believable and is not trustworthy and the prose- cution has failed to establish the offence of rape and causing the evidence of offence of rape to disappear i.e bed sheet to disappear against accused since he has not been identified by the prosecutrix to be the culprit. The evidence of the prosecutrix makes it highly improbable that such an incident was ever committed by accused Mr.Deepak Malhotra.
27. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Deepak Malhotra for the offence under sections 376/201 IPC.
Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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28. Consequently, accused Mr.Deepak Malhotra is hereby acquitted of the charge for the offence under sections 376/201 of the IPC. He be set at liberty, if not required in any other case.
29. Compliance of section 437-A Cr.P.C. is made in the order sheet.
30. Case property be destroyed after expiry of period of limitation of appeal.
31. As the prosecutrix has committed perjury and other offences, as discussed above and as also admitted by her, I deem this to be a fit case for making a Court complaint against the prosecutrix under section 195 Cr.P.C. to the Court of the learned Chief Metropolitan Magistrate, Delhi for prosecution of the prosecutrix for perjury and other offences. The complaint against the prosecutrix be made separately and Mr.Vijender Singh Kataria, Junior Judicial Assistant (Assistant Ahlmad) posted in this Court (as Senior Judicial Assistant-Reader and Junior Judicial Assistant-Assistant Ahlmad of the Court are on leave) is hereby authorised under section 195 of the Cr.P.C. by the undersigned to make the complaint before the Court of the learned Chief Metropolitan Magistrate Delhi today itself.
32. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile regarding the identity of the culprit, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
33. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
34. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 05th day of December, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 94 of 2014.
Unique Case ID Number : 02401R0370792014.
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